North Carolina Appellate Court Reverses Finding of Contributory Negligence in Dive Injury Tort Claim

Under North Carolina law, a jury can take into consideration whether a plaintiff’s own negligence was a contributing factor in causing his or her injuries. This is often one of the defenses that a defendant will assert in a personal injury case in an attempt to avoid paying damages. If the defendant is successful in establishing that the plaintiff was contributorily negligent, the defendant will not be required to pay damages. At Maurer Law, we can assist you in protecting your right to recovery and securing the outcome that you deserve.

A recent appellate opinion discussed the doctrine of contributory negligence. The plaintiff went with his fraternity to a state park that included a picnic area with a pier that extended several hundred feet into the middle of the lake. The plaintiff decided to take a swim one morning and went to the pier. The water was dark and he could not ascertain the depth. There were no signs regarding the depth of the lake, but he recalled seeing boats on the lake and various indications that swimming from the pier was acceptable. He also saw the metal ladders leading from the pier into the water. The plaintiff and his friends also threw rocks into the water in an attempt to determine its depth.

The plaintiff ultimately dove off the pier and struck the bottom of the lake with his head resulting in sharp pain in his right arm and torso stiffness. He ultimately required spinal surgery and spent six weeks in a cranial halo, although he lacked sensation in his right side and lower right extremity.

The plaintiff filed the lawsuit seeking damages from the park under the North Carolina Tort Claims Act alleging that the defendant was negligent in failing to warn park users about the shallow depth of the water and that it should have known about the danger. The Deputy Commissioner ruled in favor of the plaintiff, finding that the defendant failed to show that a reasonably prudent person would have or should have known about the shallow depth of the water. The defendant appealed.

On review, the Commission concluded that the plaintiff was contributorily negligent and that his negligence was the cause of his injuries. This time, the plaintiff appealed. The reviewing court ultimately reversed the Commission’s finding, concluding that evidence in the record showed that plaintiff made a reasonable attempt to ascertain the depth of the water and that he attempted to perform a shallow dive based on the circumstances. There was also evidence in the record, however, showing that the plaintiff failed to take other potentially reasonable precautionary measures such as using the ladders to enter the lake to ascertain its depth. The appellate court concluded that the mere act of diving into a body of water without knowing or ascertaining its depth does not constitute contributory negligence per se. Ultimately, it was not clear which facts supported the Commission’s finding of contributory negligence and the appellate court remanded the case for additional proceedings.

If you were injured in a personal injury accident, you deserve a compassionate and responsive attorney to help you ensure that you receive the fair treatment and just result that you deserve. We have handled a wide variety of negligence cases. To schedule your free consultation call us at 1-844-817-8058 or contact us online to get started.